Sarchuk,
T.C.J.:—The
appeal
of
Nigel
E.
Brown
is
with
respect
to
a
reassessment
of
his
1985
taxation
year.
In
filing
his
income
tax
return
for
that
year
the
appellant
claimed
the
cost
of
an
air
conditioning
device
as
a
medical
expense
pursuant
to
paragraph
110(1)(c)
of
the
Income
Tax
Act
(the
Act).
At
issue
is
the
respondent's
disallowance
of
the
claimed
deduction.
The
facts
relevant
to
this
appeal
are
not
in
dispute
and
can
be
briefly
summarized.
Mary
Christine
Brown
is
the
wife
of
the
appellant
and
is
at
the
present
time
43
years
old.
In
1983
she
was
diagnosed
as
having
multiple
sclerosis
and
has
been
unable
to
work
since
that
time.
As
a
result
of
her
illness
she
has
a
major
problem
with
mobility
and
is
seriously
affected
by
heat.
When
it
is
hot
and
humid
she
becomes
extremely
tired
and
fatigued
and
has
increased
difficulty
in
moving.
Her
chance
discovery
that
the
cold
air
of
an
ice
arena
reduced
her
discomfort
and
added
to
her
mobility
led
to
consultations
with
her
doctor,
Dr.
Trevor
A.
Gray,
and
to
the
ultimate
purchase
of
an
air
conditioner
in
1984.
As
a
result
of
installing
the
air
conditioning
unit
Mary
Brown's
mobility
has
been
improved.
As
she
stated,
without
the
unit
she
would
not
be
able
to
function
and
might
require
outside
attendance;
with
it
she
can
function
"near
normal”.
Dr.
Gray
is
a
Neurologist,
Chief
of
Neurology
and
Director
of
the
Multiple
Sclerosis
Clinic
at
St.
Michael's
Hospital
in
Toronto.
He
is
an
associate
professor,
Department
of
Medicine,
University
of
Toronto,
and
is
the
author
of
a
number
of
publications
and
papers
on
the
subject
of
multiple
sclerosis.
Mary
Brown
has
been
a
patient
of
his
at
the
Multiple
Sclerosis
Clinic
since
October
1983.
His
evidence,
which
follows,
was
not
challenged.
Multiple
sclerosis
is
a
progressive
degenerative
disease
of
the
nervous
system.
It
is
not
a
disease
of
the
respiratory
system.
The
disease
process
is
one
by
which
the
protective
nerve
coating
or
"myelin",
which
serves
to
insulate
the
nerve,
breaks
down.
This
demyelination
leaves
the
nerve
exposed
to
a
variety
of
nerve
impulse
conduction
disturbances
which
manifest
in
weakness,
sensory
and
visual
disturbances,
incoordination
with
loss
of
balance,
and
bladder
and
bowel
disturbances,
to
name
but
a
few.
Changes
in
environmental
temperature
have
an
obvious
effect
on
people
with
multiple
sclerosis.
Clinical
investigation
has
confirmed
that
in
many
patients
the
physical
signs
of
malfunction
of
demyelinated
nerves
show
a
remarkable
sensitivity
to
recorded
changes
in
temperature.
At
one
time,
raising
the
environmental
temperature
by
warm
bathing
was
used
as
a
diagnostic
tool
for
the
diagnosis
of
multiple
sclerosis.
A
worsening
of
symptoms
following
warming
is
known
to
be
an
indication
of
neural
damage
by
demyelination.
It
is
believed
that
a
temperature
increase
shortens
the
action
potential
duration
of
the
nerve
fibre.
Small
temperature
increases
can
create
a
conduction
blockade
preventing
the
flow
of
action
current
necessary
for
the
transmission
of
nerve
impulses.
This
in
turn
results
in
a
worsening
of
symptoms.
The
effect
is
a
temporary
one.
Conduction
is
resumed
when
the
temperature
is
lowered.
While
not
all
people
who
suffer
from
multiple
sclerosis
are
heat
intolerant,
summertime
can
be
markedly
disabling
for
many.
Many
patients
take
cool
showers
several
times
a
day
to
improve
their
neurological
function.
The
impact
of
taking
a
shower
is
short-lived
however,
and
the
necessity
of
repeatedly
taking
a
shower
is
inherently
disabling
since
it
precludes
other
activity.
A
controlled
temperature
is
the
ideal
treatment
for
such
persons.
Other
than
repeatedly
taking
cool
showers,
the
installation
of
an
air
conditioner
in
a
patient's
home
may
be
the
only
effective
treatment
which
a
physician
can
prescribe.
There
are
drugs
under
development
which
are
said
to
simulate
the
impact
of
cooling
the
external
environment
for
the
patient.
Unfortunately
these
drugs
have
toxic
side
effects
and
therefore
cannot
always
be
prescribed
as
an
alternative.
Dr.
Gray
described
Mary
Brown
as
a
patient
who
has
major
problems
with
mobility
due
to
a
marked
weakness
in
her
lower
limbs.
Her
multiple
sclerosis
is
also
making
her
left
upper
limb
progressively
weaker.
She
has
difficulty
turning
over
in
bed.
She
can
walk
about
20
feet
with
great
difficulty
with
a
cane.
Her
symptoms
are
made
worse
by
heat
and,
in
particular,
she
is
unable
to
walk.
The
adverse
effects
of
heat
on
her
ability
to
walk
were
apparent
from
his
first
meeting
with
Mrs.
Brown.
Dr.
Gray
was
of
the
view
that
Mrs.
Brown
was
well
advised
to
install
an
air
conditioner
since
it
could
and
did
alleviate
the
heat
induced
symptoms
she
had
been
experiencing.
He
felt
it
would
assist
her
to
be
able
to
walk
and
according
to
her,
she
has
been
mobile
and
been
able
to
walk
during
the
summer
months,
something
she
could
not
have
achieved
without
the
air
conditioner.
Evidence
was
also
adduced
from
Dr.
Bert
Stewart
Hall.
He
is
an
historian
with
a
Ph.D.
from
the
University
of
California,
Los
Angeles.
Currently
he
is
an
assistant
professor
at
the
Institute
for
the
History
and
Philosophy
of
Technology
at
the
University
of
Toronto,
specializing
in
the
history
of
technology.
Following
a
request
from
the
appellant,
Dr.
Hall
researched
the
history
of
air
conditioning
units
and
synthetic
speech
systems,
two
technical
devices
which
ameliorate
a
person's
disability
and
which
are
referred
to
in
section
5700
of
the
Income
Tax
Regulations.
The
history
of
air
conditioning
is
technologically
indistinguishable
from
the
history
of
mechanical
refrigeration
systems.
Both
share
in
the
same
technological
base
and
have
the
same
point
of
origin
in
the
historical
record.
In
the
mid
1840s
a
physician
practising
in
Florida,
Dr.
John
Gorrie,
became
convinced
that
his
patients
would
benefit
from
a
therapy
that
cooled
the
air
in
their
hospital
rooms.
He
initially
used
containers
filled
with
ice
suspended
in
the
hospital
rooms
as
part
of
the
ventilation
system.
Encouraged
by
the
clinical
results
of
his
early
trials,
Gorrie
sought
to
supplant,
by
a
simple
mechanical
system,
the
expensive
ice.
Using
a
secondhand
steam
engine,
he
developed
a
mechanical
cooling
device
that
used
ordinary
air
compressed
to
a
pressure
of
several
atmospheres.
Despite
the
simplicity
of
Gorrie’s
mechanics
and
the
inefficiency
of
air
as
a
working
fluid
in
such
an
application,
the
early
air
conditioning
effort
was
a
success.
Indeed,
one
night
in
the
summer
of
1845
someone
in
his
employ
failed
to
regulate
the
speed
of
the
steam
engine
and
the
following
morning
the
cold
air
pipes
were
found
to
be
clogged
with
ice.
The
water
vapour
in
ordinary
air
had
been
frozen
into
ice
by
the
unregulated
Gorrie
machine.
Gorrie
has
been
honoured
a
number
of
times
and
is
identified
in
the
United
States
as
the
father
of
all
modern
air
conditioning
and
mechanical
refrigeration
systems.
Although
he
considered
commercial
applications
for
his
theories,
he
was
not
successful
in
these
ventures,
nor
did
he
patent
the
device.
Since
that
time
the
technology
pioneered
by
him
has
gone
through
many
refinements
motivated
by
a
host
of
commercial
and
other
objectives.
As
Dr.
Hall
noted,
it
is
difficult
to
pinpoint
any
one
point
of
origin
or
to
state
that
there
is
any
one
intended
application
for
such
technology.
Dr.
Hall
also
testified
with
respect
to
computer
connected
synthetic
speech
systems
which
are
referred
to
in
subsection
5700(0)
of
the
Income
Tax
Regulations.
His
research
once
again
indicated
that
there
was
no
single
point
of
origin
for
such
systems.
There
has
been
very
broad
interest
in
developing
a
means
for
allowing
humans
to
communicate
with
computers
by
voice
and
researchers
have
received
financial
support
from
a
variety
of
sources,
not
the
least
of
which
are
space
or
military
sources.
Dr.
Hall
spoke
of
a
group
working,
with
partial
funding
from
the
United
States
military,
at
the
Massachusetts
Institute
for
Technology
in
Boston
on
a
functional
reading
machine
which
could
be
used
by
blind
persons.
He
said
that
even
the
work
of
this
group
could
not
be
defined
as
“designed
exclusively
to
be
used
by
a
blind
individual”
because
such
research
is
funded
through
a
wide
variety
of
sources
and
with
as
many
commercial
applications
as
possible
in
mind.
Because
space,
military
and
commercial
applications
for
technology
tend
to
attract
more
resources
it
is
common
for
technologies
to
be
developed
with
these
purposes
in
mind
and
it
is
only
later
that
they
may
be
turned
to
other
purposes
such
as
assisting
disabled
persons
to
overcome
their
handicaps.
Counsel
for
the
appellant
argued
that
the
evidence
adduced
supports
the
deduction
of
the
amount
paid
for
the
air
conditioning
unit
in
computing
his
taxable
income
pursuant
to
the
provisions
of
subparagraphs
(ix)
and
(xii)
of
paragraph
110(1)(c)
of
the
Act,
and
section
5700
of
the
Income
Tax
Regulations.
These
sections
read:
110.
(1)
For
the
purpose
of
computing
the
taxable
income
of
a
taxpayer
for
a
taxation
year,
there
may
be
deducted
such
of
the
following
amounts
as
are
applicable:
(c)
an
amount
equal
to
that
portion
of
medical
expenses
in
excess
of
3%
of
the
taxpayer's
income
for
the
year
paid
either
by
the
taxpayer
or
his
legal
representatives
.
.
.
if
payment
was
made
(ix)
for
or
in
respect
of
an
artificial
limb,
iron
lung,
rocking
bed
for
poliomyelitis
victims,
wheel
chair,
crutches,
spinal
brace,
brace
for
a
limb,
iliostomy
or
colostomy
pad,
cloth
diapers
or
disposable
briefs
used
by
a
person
who
is
incontinent
by
reason
of
illness,
injury
or
affliction,
truss
for
hernia,
artificial
eye,
laryngeal
speaking
aid,
aid
to
hearing
or
artificial
kidney
machine
for
the
taxpayer,
his
spouse
or
any
such
dependant,
(xii)
for
any
device
or
equipment,
not
described
in
any
other
subparagraph
of
this
paragraph,
of
a
prescribed
kind,
for
use
by
the
taxpayer,
his
spouse
or
any
such
dependant
as
prescribed
by
such
a
medical
practitioner
.
.
.
[Emphasis
added].
5700.
For
the
purposes
of
subparagraph
110(1)(c)(xii)
of
the
Act,
a
device
or
equipment
is
hereby
prescribed
if
it
is
a
(i)
device
not
described
in
subparagraph
110(1)(c)(ix)
of
the
Act
that
is
designed
to
assist
a
crippled
individual
in
walking.”
[Emphasis
added].
The
appellant
contends
that
in
the
circumstances
of
this
case
the
air
conditioning
unit,
purchased
on
the
medical
advice
of
Dr.
Gray,
is
a
device
or
equipment
which
assists
a
crippled
person,
the
appellant's
wife,
to
walk,
and
as
such
meets
the
requirements
of
subparagraphs
110(1)(c)(ix),
110(1)(c)(xii)
and
Regulation
5700(i).
With
respect
to
the
word
"designed"
found
in
the
relevant
regulation,
counsel
for
the
appellant
argued
that
the
meaning
to
be
given
to
that
word
is
“with
the
purpose
of”
or
“with
the
intention
that".
Since
technology
is
usually
invented
for
a
broad
range
of
purposes
but
rarely
for
disability
related
ones,
what
happens
is
that
disabled
people,
acting
on
medical
advice,
apply
such
technologies
to
medical
purposes.
In
this
case
an
air
conditioner
was
utilized
as
a
device
to
assist
Mrs.
Brown
to
walk.
It
is
the
appellant's
and
his
wife’s
subjective
purpose
as
to
how
this
"device"
was
to
be
used
and
their
intention
which
is
determinative
of
this
matter.
Counsel
argued
as
well
that
the
word
"designed"
is
used
in
some
11
separate
subparagraphs
in
paragraph
5700
of
the
Regulations.
At
least
five
of
those
subparagraphs,
being
(c),
(m),
(n),
(o)
and
subparagraph
(f)
use
the
words
"designed
exclusively”
or
"designed
solely”.
If
the
legislators
wished
to
make
subparagraph
110(1)(c)(ix)
more
restrictive
they
could
have
used
words
such
as
"exclusively"
or
“solely”
as
they
have
done
in
other
instances
in
the
same
regulation.
The
intention
of
Regulation
5700(i)
was
to
go
beyond
or
extend
the
operation
of
subparagraph
110(1)(c)(ix)
to
include
devices
which
assist
a
crippled
individual
in
walking
other
than
"artificial
limbs,
crutches
and
braces",
and
it
would
be
improper
to
adopt
a
narrow
interpretation
when
these
provisions
are
read
together.
Counsel
further
argued
that
reference
could
be
made
to
subsection
(c)
of
Regulation
5700
where
it
is
stated:
(c)
device
or
equipment
including
a
replacement
part,
designed
exclusively
for
use
by
an
individual
who
is
suffering
from
a
chronic
respiratory
ailment
to
assist
him
in
breathing
.
.
.
but
not
including
an
air
conditioner,
humidifier,
dehumidifier
or
air
cleaner."
Counsel
submitted
that
the
principle
to
be
applied
is
expressio
unius
est
exclusio
alterius
and
that
it
was
open
for
the
Court
to
find
that
there
was
a
specific
intention
on
the
part
of
legislators
not
to
exclude
air
conditioners
under
subsection
(i).
Counsel
for
the
respondent
argued
that
the
meaning
of
the
words
contained
in
Regulation
5700(i)
should
be
determined
with
reference
to
the
statutory
provisions
they
relate
to,
in
this
case
subparagraph
110(1)(c)(ix)
and
in
particular
the
words
"artificial
limb,
.
.
.
crutches,
spinal
brace,
brace
for
a
limb
tr
I
have
concluded
that
the
position
taken
by
the
respondent
is
correct.
Although
subparagraph
110(1)(c)(xii)
of
the
Act
and
Regulation
5700(i)
were
clearly
intended
by
the
legislators
to
extend
the
deductibility
of
the
cost
to
other
devices
which
assist
a
crippled
individual
in
walking
which
are
not
specifically
referred
to
in
subparagraph
110(1)(c)(ix),
it
would
be
improper
to
read
these
provisions
as
broadly
as
sought
by
counsel
for
the
appellant.
An
air
conditioning
unit
or
refrigerator
unit
was
not,
in
any
sense
of
the
word,
designed
to
assist
an
individual
in
walking.
Giving
full
consideration
to
the
evidence
of
Dr.
Hall
I
cannot
accept
the
proposition
that
it
is
the
taxpayer's
subjective
purpose
or
intention
which
is
to
be
determinative
of
this
issue.
I
am
satisfied
that
Regulation
5700(i)
provides
only
for
the
type
of
item
that
one
finds
in
subparagraph
110(1)(c)(ix).
I
agree
with
the
submission
made
by
counsel
for
the
respondent
that
the
type
of
device
envisaged
by
that
subparagraph
is
a
device
which
has
a
direct
mechanical
or
physical
application
to
assist
someone
in
walking.
Equipment
such
as
an
air
conditioner,
a
jacuzzi,
hot
tubs,
whirlpools,
humidifiers,
air
cleaners
are
not
"designed"
"to
assist
a
crippled
individual
in
walking”.
Such
equipment
may
play
a
legitimate
medical
role
but
that
per
se
does
not
permit
the
expense
of
acquiring
and
installing
the
equipment
to
be
deductible
under
the
provisions
contained
in
subparagraph
110(1)(c)(ix)
of
the
Act.
The
appeal
is
dismissed.
Appeal
dismissed.
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